United States v. Darrell Moore ( 2019 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 19a0096n.06
Nos. 16-4103/4115
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Feb 28, 2019
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellant/Cross-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE
DARRELL D. MOORE, ) NORTHERN DISTRICT OF
) OHIO
Defendant-Appellee/Cross-Appellant. )
)
BEFORE: BATCHELDER, GILMAN, and ROGERS, Circuit Judges
ROGERS, Circuit Judge. Darrell Moore pleaded guilty to one count of felon in possession
of a firearm, 18 U.S.C. § 922(g)(1). When a § 922(g) violator has at least three violent felonies
on his criminal record, he may be sentenced as an armed career criminal—a designation that
triggers a steep fifteen-year mandatory minimum sentence, § 924(e)(1). Moore had three prior
Ohio convictions—for robbery, aggravated robbery, and aggravated assault—which the
Government contends are predicate violent felonies. But Moore was not sentenced as an armed
career criminal, because the district court held that only one of those convictions (Ohio aggravated
assault) is a violent felony under the Armed Career Criminal Act.
Subsequent decisions by this court have brought into question the district court’s ACCA
holdings. First, this court in United States v. Patterson held that Ohio aggravated robbery is
categorically a violent felony under the ACCA. 853 F.3d 298, 302–03 (6th Cir. 2017). Second,
this court in United States v. Burris held that Ohio aggravated assault is divisible into two variants,
Nos. 16-4103/4115, United States v. Moore
Ohio Rev. Code § 2903.12(A)(1) and (A)(2), and that a conviction under § 2903.12(A)(2) remains
an ACCA predicate. 912 F.3d 386, 405 (6th Cir. 2019); id. at 410 (Rogers, J., concurring in part
and in the judgment); id. at 410–11 (Kethledge, J., concurring in the judgment). It is unclear on
this record which variant Moore was convicted of, and a look at the so-called Shepard documents
is required. Third, the district court held that Ohio robbery under Ohio Rev. Code § 2911.02(A)(2)
does not qualify under the ACCA because it requires a mens rea of only recklessness. But in doing
so, the court relied on yet another since-reversed precedent. Following the Supreme Court’s
decision in Voisine v. United States, 136 S. Ct. 2272 (2016), this court has held that recklessness
may suffice under the elements clause of the Armed Career Criminal Act. See United States v.
Verwiebe, 874 F.3d 258, 252 (6th Cir. 2017).
In light of these developments with respect to each of Moore’s three possible predicate
offenses, we vacate Moore’s sentence and remand for resentencing consistent with these changes
in the law.
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